Alerts and Updates

Recent Developments in Immigration Law

June 2007

United States Citizenship and Immigration Services Updates

H-1B Master's Cap Reached

On May 4, 2007, USCIS announced that the H-1B Master's Cap has been reached for fiscal year (FY) 2008. USCIS announced that the final receipt date for H-1B petitions subject to the Master's Cap was April 30, 2007. In addition, USCIS confirmed that petitions received on April 30, 2007, will be subject to the random selection process.

The H-1B Master's Cap provided 20,000 H-1B visa numbers to those workers who graduated from a U.S. university with the minimum of a master's degree.

USCIS previously announced that the general H-1B cap was reached as of April 3, 2007. Petitions received on April 2 and April 3 were also subject to a random selection process.

USCIS Filing Fee Increase

On July 30, 2007, significant increases in USCIS filing fees for immigration benefits will take effect. According to USCIS, the new fees "will ensure that USCIS will have sufficient funding to fully recover its costs of doing business and also enable USCIS to meet national security and public safety concerns, prevent and detect fraud, and invest in comprehensive transformation efforts — all leading to a more efficient and effective immigration system."

Some of the most often utilized petition and application types are summarized below, along with the corresponding fee increase:

Form I-129, Petition for Nonimmigrant Worker: $320 [current fee, $190]
Form I-140, Immigrant Petition for Alien Worker: $475 [current fee, $195]
Form I-485, Application to Adjust Status to LPR: $1,010* [current fee, $325]
Form I-765, Application for EAD: $340 [current fee, $180]
Form I-131, Application for Advance Parole: $305 [current fee, $170]
Form I-907, Premium Processing Service: $1,000, no change

*However, new fee includes biometric fee, initial EAD, and initial Advance Parole.

A link to the full revised fee schedule can be found at the following USCIS web address: http://www.uscis.gov/files/nativedocuments/FinalUSCISFeeSchedule052907.pdf

Department of State Updates

Employment-Based Immigrant Visa Availability Update

The July 2007 Visa Bulletin is current for EB-1, EB-2 and EB-3 classifications, for all countries. Other workers remains unavailable. Department of State (DOS) expects demand may be such in coming months that it will need to retrogress numbers, especially for India and China, and that severe retrogressions will take effect at the beginning of the next fiscal year.

In June 2007, the Visa Bulletin issued by the DOS had shown significant movement forward in some of the employment-based (EB) categories for immigrant visa (green card) availability.

EB-1

All countries: Current

EB-2

India: April 1, 2004 (forward movement of over one year)
China: January 1, 2006 (forward movement of nine months)
All other countries: Current

EB-3

India: June 1, 2003 (forward movement of two years)
Mexico: June 1, 2003 (forward movement of two years)
China June 1, 2003 (forward movement of 10 months)
Philippines June 1, 2005 (forward movement of almost two years)
All other countries: June 1, 2005 (forward movement of almost two years)

For a link to the current Visa Bulletin and listing of all categories, including family-based immigrant visa categories, please visit the Department of State website at: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

The new cut-off dates became effective on June 1, 2007. Now, foreign nationals may either file their application for adjustment of status to permanent residence or may apply for an approval of their immigrant visa at a U.S. consular post abroad, if their immigrant visa priority date is before the cut-off date in their category outlined above.

Despite significant movement forward, lengthy EB-quota immigrant visa backlogs continue to prevent many foreign workers who qualify under EB-3 classification from securing final green card approval for many years. Indian and Chinese nationals are currently experiencing the greatest delays. Ironically, while the processing time of labor certifications under the new PERM system (the first step in the employment-based permanent residence process for the majority of foreign nationals) has been greatly reduced, most employer-sponsored green card processing has been considerably lengthened due to the retrogression in EB quotas. Fortunately, extensions of foreign workers' H-1B status beyond the six-year limit are permitted in many cases while they are waiting for their quota cut-off date to be reached. Duane Morris is working with clients with current priority dates to gather the documentation and prepare applications for those now eligible to apply for permanent residence.

Department of Labor Updates

On May 17, 2007, the Department of Labor (DOL) published a final rule affecting labor certification applications. The final rule is effective on July 16, 2007. The majority of regulatory changes are designed to reduce the incidence of fraud relating to the labor certification program. The principal new provisions are as follows:

  • Elimination of Substitution of Beneficiaries. After July 16, 2007, an immigrant petition (Form I-140) may no longer be filed with USCIS requesting that a different foreign national from the individual set forth on the approved labor certification application be substituted as the beneficiary.
  • Requires Employers to Pay Fees. Employers are not permitted to seek or receive payment of any kind relating to obtaining a labor certification, including the payment of attorneys' fees; payment includes monetary payments, wage concessions, free labor, and the like. Where an attorney represents both the employer and the foreign national, attorneys' fees must be borne by the employer. However, a foreign national may retain an attorney separately to represent solely the foreign national's interests in the process.
  • Creates 180-Day Post-Certification Validity Period. All labor certifications must be filed with USCIS in support of a Form I-140 immigrant petition within 180 calendar days of approval by DOL, or they will expire. Any labor certification approved after July 16, 2007, will be subject to the 180-day validity rule. Any labor certification application approved prior to July 16, 2007, must be filed in support of a Form I-140 immigrant petition within 180 days of July 16, 2007, or it will expire.

Debate on Immigration Reform

The U.S. Senate has recently suspended consideration of a proposed immigration reform bill. It is possible that the Senate may in the future consider immigration reform proposals again. The bill that was recently proposed would have had a significant impact on immigrants, employers and the permanent residence process. Some of the key provisions of the Senate bill included:

  • Elimination of current employment-based immigrant visa categories. The bill proposed a new "point-based" system that awards points for education and professional experience, English language skills and family ties. It eliminated preference categories for executives, managers, researchers and those working in the national interest. The business community has raised significant concerns about the feasibility of the point system and its ability to meet the needs of the labor market.
  • Elimination of most family-based immigrant visa categories. The bill proposed to redefine "immediate relatives" to exclude parents of U.S. citizens, creating a separate category for parents of U.S. citizens with only a limited number of visas available. It would also eliminate other family preference categories, leaving only the category for spouses and minor children of permanent residents.
  • Restrictions on H-1B visas and heightened requirements for employers. The bill proposed an increase in the number of visas available to 115,000 for fiscal year 2008 and future increases based on demand. Additional proposals included increasing the application fees by $5,000, requiring employers to conduct recruitment for H-1B workers and requiring attestation requirements for all H-1B employers regarding non-displacement of U.S. workers for six months before and after filing of the H-1B petition.
  • Increased penalties and enforcement. The bill included a significant increase in resources for border security, enforcement and detention. The bill proposed increased penalties for immigration and criminal violations, increased worksite enforcement and penalties for employers, and mandatory participation in an electronic employment eligibility system for all U.S. employers. The bill also severely limited judicial review of administrative decisions and detention.
  • Temporary guest worker program. The bill proposed a new "Y" visa for temporary guest workers and seasonal workers who would be matched to "willing employers" unable to fill positions. The "Y" visa has strict limits on period of stay to two years. Applicants who are not accompanied by spouses or children may apply for an additional two-year stay only after leaving the U.S. for one year. Any overstay beyond the two years results in a permanent bar to any future immigration benefit.
  • New "Z" visa for undocumented workers to apply for legalization. The bill proposed a new temporary "Z" visa for individuals illegally present in the U.S. before January 1, 2007. Applicants must be currently employed, undergo background checks and pay penalties and fees of $5,000 to be eligible for permanent residence after leaving the U.S. and applying under the new immigrant visa "point-based" system.

For more details regarding the text of the bill, legislative updates, and information about how you can contact Congress, please visit the American Immigration Lawyers Association website at www.aila.org.

For Further Information

For more information about this Alert, please contact one of the immigration attorneys of our Employment & Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.